COMMONWEALTH v. DOLBY

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and orders posted here are subject to formal revision and are
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Complaint received and
sworn to in the Southern Berkshire Division of the District Court
Department on October 6, 1998.

A motion to suppress evidence
was heard by Fredric D. Rutberg, J.

Joseph A. Pieropan,
Assistant District Attorney, for the Commonwealth.

Karen M. Thursby for the
defendant.

GILLERMAN, J.

On October 29, 1998, the defendant was
arraigned in the Southern Berkshire District Court and charged
with speeding, in violation of G. L. c. 90, ? 17
(a civil infraction), and possession of a class D controlled
substance (marijuana), in violation of G. L. c. 94C,
? 34. On December 16, 1998, the defendant filed a motion to
suppress evidence, claiming that "the evidence seized, to
wit: marijuana, as a result of the unlawful search and seizure
was obtained in violation of her [Federal and State
constitutional] rights . . . ." After a hearing on her
motion on January 7, 1999, the court allowed the motion and filed
written findings. The Commonwealth filed a notice of appeal. On
February 16, 1999, the Supreme Judicial Court granted the
Commonwealth’s application for interlocutory appeal and
transferred the case to the Appeals Court.

We take the facts from the judge’s findings,
which are sparse, and from testimony of the police officer, to
"fill out the narrative." Commonwealth v. Butler,
423 Mass. 517, 526 n.10 (1996). On September 24, 1998, Mark
Rogers, a Massachusetts State Trooper, was patrolling north on
Route 7 in Stockbridge at approximately 12:00 noon. As he
approached the intersection of Ice Glen Road and Route 7, Rogers
noticed a minivan in the southbound lane about to make a left
turn onto Ice Glen Road. Rogers, about to drive past the minivan,
saw a red Toyota "pass the minivan on the right hand side in
the breakdown lane." The Toyota was traveling at
approximately fifty miles per hour in a thirty-five mile per hour
zone. Believing this speed to be unreasonable, Rogers made a
U-turn and followed the Toyota until it stopped just before the
Great Barrington-Stockbridge line on Route 7.

The driver, the defendant, was the sole
occupant of the vehicle. The driver handed her license and
registration to Rogers as he approached her window. Rogers looked
through the window of the car and saw what he knew to be a
"bong,"[1]on the right rear passenger
floor.[2] He observed that the bong (the chamber of which was
made of clear plastic) had been used: there was extensive residue
in the chamber. Rogers believed, the judge found, "that the
residue had to be marijuana because bongs are used primarily for
smoking marijuana." The judge characterized this belief as
"merely a hunch."

The judge made no findings as to the subsequent
events, but they appear to be undisputed, there being no
challenge to Rogers’s credibility. Having seen the bong with
residue in the chamber, and believing the residue to be derived
from marijuana, Rogers asked the defendant to get out of her
vehicle, and he conducted a frisk of her outer clothing to search
for weapons.[3] Finding no weapons, Rogers asked the defendant whether
she owned the bong, and she replied that it did belong to her.
The trooper then told the defendant to sit on the guardrail, a
short distance from the front of her car.

The trooper seized the bong from inside the
defendant’s vehicle, smelled the interior of the bong, and
determined that the smell was "consistent with what I
recognize as burnt marijuana." Rogers then searched the
entire vehicle for contraband. He recovered a silver box
containing approximately twenty-five to thirty seeds, which he
recognized to be marijuana plant seeds.

The judge allowed the motion to suppress. He
reasoned that Rogers’s training and experience may have
influenced his hunch, but that that did "not take the place
of ‘articulable facts’ which could have reasonably led Trooper
Rogers to conclude that the residue was marijuana."[4]
The judge concluded that "[b]ongs are bought, sold and
possessed legally every day throughout the Commonwealth; and the
mere possession of a bong does not rise to probable cause that
any particular possessor of a bong is also in possession of
marijuana." The judge entered an order suppressing the bong
and the silver-colored metal box containing marijuana seeds.

Discussion. The defendant argues in her
brief that the seizure of the bong and the ensuing search of her
vehicle were illegal because of the absence of probable cause.

It was the Commonwealth’s burden to show that
the trooper, in seizing the bong and the marijuana seeds, acted
on probable cause. Sullivan v. District Court of
Hampshire, 384 Mass. 736, 743-744 (1981). "’In dealing
with probable cause,. . . as the very name implies, we deal with
probabilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.’" Commonwealth
v. Cast, 407 Mass. 891, 895 (1990), quoting from Draper
v. United States, 358 U.S. 307, 313 (1959). See also Commonwealth
v. Skea, 18 Mass. App. Ct. 685, 689 (1984) ("Probable
cause ‘is a flexible, common-sense standard, [which] merely
requires that the facts available to the officer would
"warrant a man of reasonable caution in the belief"
that certain items may be contraband . . .; it does not demand
any showing that such a belief be correct or more likely true
than false’" [citations omitted]).

The defendant, now accepting the relevance of
that portion of G. L. c. 94C, ? 1, which defines "drug
paraphernalia,"[5] argues that a bong is not illegal to possess
"absent some indication that it has been or is intended to
be used to ingest . . . drugs into the human body." She
argues that there were no such indications when the trooper
seized the defendant’s bong. We do not agree.

General Laws c. 94C, ? 1, defines the
terms used in c. 94C, including the phrase "drug
paraphernalia." "Drug paraphernalia" is defined
(as appearing in St. 1998, c. 50) as including "all
equipment, products, devices and materials of any kind which are
primarily intended or designed for use in . . . inhaling . . . a
controlled substance . . . . It includes, but is not limited
to: . . . (12) objects used, primarily intended for
use or designed for use in ingesting, inhaling, or otherwise
introducing [a controlled substance] into the human body, such
as . . . (l) bongs . . . ." (Emphases supplied.)

With the enactment of St. 1998, c. 50, approved
March 12, 1998, rewriting the definition of "drug
paraphernalia" in G. L. c. 94C, ? 1, and effective
three months prior to the events in this case,[6]
bongs, for the first time, were included among the items
identified as objects used or designed for use in inhaling a
controlled substance.[7]

After the reference to "bongs" and
other identified items, ? 1 continues: "In determining
whether an object is drug paraphernalia, a court or other
authority should consider, in addition to all other logically
relevant factors, the following: . . . ." Then follows
a list of eleven factors to be considered "[i]n determining
whether an object is drug paraphernalia"; included in the
list as a factor is "(c) the existence of any residue of
controlled substances on the object."

The definition of "drug
paraphernalia" in c. 94C, ? 1, is not without its
interpretive difficulties. It is not entirely clear, for example,
whether the inclusion of "bongs" within the list of
"objects used, primarily intended for use or designed for
use in . . . inhaling [a controlled substance]" is alone
sufficient to constitute bongs as "drug paraphernalia,"
or whether, as the defendant argues, the Commonwealth must also,
in order to show that the object constitutes "drug
paraphernalia," establish that the object is "primarily
intended or designed for use in . . . inhaling or otherwise
introducing into the human body a controlled substance," as
set out in the first sentence of the definition of "drug
paraphernalia."

The facts of the case before us resolve this
difficulty. Here, the trooper saw a bong with residue in the
chamber, and he reasonably believed that the residue was probably
derived from marijuana.[8]These facts must be considered in
the context of additional provisions appearing in ? 1.
Section 1 defines "primarily intended for use" as
"the likely use which may be ascribed to an item by a
reasonable person" and provides that, "[f]or purposes
of this definition, the phrase ‘designed for use’ shall mean the
use a reasonable person would ascribe to an item based on the
design and features of said item." Further, the definition
of "drug paraphernalia" in ? 1 provides that a
court, in determining whether an object is drug paraphernalia,
should consider "the existence of any residue of [a]
controlled substance[] on the object . . . ."

The facts in the present case, in the context
of the relevant statutory provisions, present a configuration
that falls within prohibited territory: the sight, in plain view,[9] of a bong with residue in the chamber indicating prior
use, and which the trooper reasonably believed, based on his
training and experience, see note 4, supra, was marijuana
residue. Rogers then had probable cause to connect the bong with
criminal activity, i.e., knowing possession of a controlled
substance. That connection to criminal activity was sufficient to
justify Rogers’s seizure of the bong. On the facts presented the
seizure of the defendant’s bong "?involves no invasion of
privacy and is presumptively reasonable, assuming that there
is probable cause to associate the property with criminal
activity (emphasis original).’" Commonwealth v. Skea,
18 Mass. App. Ct. 685, 689 (1984), quoting from Texas v. Brown,
460 U.S. 730, 741-742 (1983). See also Sullivan v. District
Court of Hampshire, 384 Mass. at 743 ("Of course, for
any warrantless seizure to meet Fourth Amendment standards there
must be probable cause to believe that the item seized is
connected with criminal activity"); Commonwealth v. Wojcik,
358 Mass. 623, 628-631 (1971) (where articles seized were not
contraband ["articles which it is unlawful for one to have
in his possession"], the seizure of articles not described
in the warrant would have been legal only if police officers knew
or had probable cause to believe the articles had been stolen and
the defendant knew them to be stolen).

Once the trooper seized the bong, he smelled
the residue and confirmed his belief that the residue was derived
from marijuana. He then had probable cause to search the
defendant’s vehicle "for the presence of other controlled
substances." Commonwealth v. Skea, 18 Mass.
App. Ct. at 688. See Commonwealth v. Agosto, 428
Mass. 31, 34 (1998) ("When there is probable cause to search
an automobile stopped on a highway, an immediate search is
constitutionally permissible"). There was no basis to
suppress the marijuana seeds found in the defendant’s vehicle.[10]

In sum, the sight of the bong with residue in
the chamber ‘- which Rogers reasonably believed was derived from
marijuana ‘- provided the trooper with probable cause to seize
the bong. After the trooper smelled the residue and determined
that it smelled like burnt marijuana, he had probable cause to
search the vehicle.

We express no opinion as to whether the mere
sight of a bong is sufficient for the item to be seized.[11]
Possession of a bong, and no more, is not a crime in
Massachusetts. But see G. L. c. 94C, ? 32I: possession
of drug paraphernalia with intent to sell, knowing, or under
circumstances where one reasonably should know, that it will be
used to introduce a controlled substance into the human body, is
a crime. See Commonwealth v. Jasmin, 396 Mass. 653
(1986).

The order allowing the motion to suppress is
reversed.

So ordered.

APPENDIX

General Laws ? 94C, ? 1, provides in part
(emphases supplied):

"Drug paraphernalia", all equipment,
products, devices and materials of any kind which are primarily
intended or designed for use in planting, propagating,
cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, concealing,
injecting, ingesting, inhaling or otherwise introducing into the
human body a controlled substance in violation of this chapter.
It includes, but is not limited to:

(1) kits used, primarily intended for use or
designed for use in planting, propagating, cultivating, growing
or harvesting fo any species of plant which is a controlled
substance or from which a controlled substance can be derived;

(2) kits used, primarily intended for use of
designed for use in manufacturing, compounding, converting,
producing, processing or preparing controlled substances;

(3) isomerization devices used, primarily
intended for use or designed for use in increasing the potency of
any species of plant which is a controlled substance;

(4) testing equipment used, primarily intended
for use or designed for use in identifying or in analyzing the
strength, effectiveness or purity of controlled substances;

(5) scales and balances used, primarily
intended for use or designed for use in weighing or measuring
controlled substances;

(6) diluents and adulterants, such as quinine
hydrochloride, mannitol, mannite, dextrose and lactose, used,
primarily intended for use or designed for use in cutting
controlled substances;

(7) separation gins and sifters used, primarily
intended for use or designed for use in removing twigs and seeds
from or in otherwise cleaning or refining marihuana;

(8) blenders, bowls, containers, spoons and
mixing devices used, primarily intended for use or designed for
use in compounding controlled substances;

(9) capsules, balloons, envelopes and other
containers used, primarily intended for use or designed for use
in packaging small quantities of controlled substances;

(10) containers and other objects used,
primarily intended for use or designed for use in storing or
concealing controlled substances;

(11) hypodermic syringes, needles and other
objects used, primarily intended for use or designed for use in
parenterally injected controlled substances into the human body;

(12) objects used, primarily intended
for use or designed for use in ingesting, inhaling, or
otherwise introducing marihuana, cocaine, hashish or hashish
oil into the human body, such as:

(a) metal, wooden, acrylic, glass, stone,
plastic or ceramic pipes, which pipes may or may not have
screens, permanent screens, hashish heads or punctured metal
bowls;

(b) water pipes;

(c) carburetion tubes and devices;

(d) smoking and carburetion masks;

(e) roach clips; meaning objects used to hold
burning material, such as a marihuana cigarette that has become
too small or too short to be held in the hand;

(f) miniature cocaine spoons and cocaine vials;

(g) chamber pipes;

(h) carburetor pipes;

(i) electric pipes;

(j) air-driven pipes;

(k) chillums;

(l) bongs;

(m) ice pipes or chillers;

(n) wired cigarette papers;

(o) cocaine freebase kits.

"In determining whether an object is
drug paraphernalia, a court or other authority should consider,
in addition to all other logically relevant factors, the
following:

(a) the proximity of the object, in time and
space, to a direct violation of this chapter;

(b) the proximity of the object to controlled
substances;

(c) the existence of any residue of
controlledsubstances on the object;

(d) instructions, oral or written, provided
with the object concerning its use;

(e) descriptive materials accompanying the
object which explain or depict its use;

(f) national and local advertising concerning
its use;

(g) the manner in which the object is displayed
for sale;

(h) whether the owner, or anyone in control of
the object, is a supplier of like or related items to the
community, such as a licensed distributor or dealer of tobacco
products;

(i) direct or circumstantial evidence of the
ratio of sales of the object to the total sales of the business
enterprise;

(j) the existence and scope of legitimate uses
for the object in the community;

(k) expert testimony concerning its use.

"For purposes of this definition, the
phrase "primarily intended for use" shall mean the
likely use which may be ascribed to an item by a reasonable
person. For purposes of this definition, the phrase
"designed for use" shall mean the use a reasonable
person would ascribe to an item based on the design and features
of said item."

FOOTNOTES:

[1] A "bong" is a "water pipe that consists
of a bottle or a vertical tube partially filled with liquid and a
smaller tube ending in a bowl, used often in smoking narcotic
substances." Posters ‘N’ Things, Ltd. v. United
States, 511 U.S. 513, 515 n.1 (1994), quoting from American
Heritage Dictionary 215 (3d ed. 1992).

[2]Looking into the defendant’s
vehicle and seeing the bong was not a search for constitutional
purposes. See Commonwealth v. Wilson, 360 Mass.
557, 560 (1971).

[4] With regard to his training, Rogers had testified,
"During my twenty-two weeks at the State police academy in
Braintree, we were trained by officers from the Drug Enforcement
Administration with respect to identification of marijuana and
particular [items] used commonly with marijuana to smoke it. We
were shown raw marijuana. We were also introduced to the smell of
burnt marijuana. These agents brought . . . marijuana and they
burned [it] in our classroom so that we [could] become familiar
with the smell of burnt marijuana."

[5]The parties in their original
briefs to this court made no mention of G. L. c. 94C, ? 1.
Following oral argument we invited a supplemental memorandum from
counsel regarding the applicability, vel non, to the evidence in
this case of G. L.

c. 94C, ? 1(12)(l)(definition of
"drug paraphernalia"), as appearing in St. 1998, c. 50,
approved March 12, 1998 (three months prior to the events in this
case). The 1998 amendment rewrote the definition of "drug
paraphernalia," as discussed in the text.

The portion of ? 1 defining "drug
paraphernalia" appears, in full, in the appendix to this
opinion.

[6]Given the fact that the parties,
in their original briefs to this court, made no mention of G. L.
c. 94C, ? 1, see note 5, supra, we have no reason to
believe that this statutory provision was brought to the
attention of the trial judge.

[7]The definition of "drug
paraphernalia" in the Federal act prohibiting the sale of,
and the use of the mails or other interstate commerce to
transport, drug paraphernalia, see 21 U.S.C. ? 863(d)(12)
(1994), also includes "bongs." General Laws c. 94C,
inserted by St. 1971, c. 1071, ? 1, and entitled the Controlled
Substances Act, is based on the Uniform Controlled Substances
Act, versions of which have been published in 1970, 1990, and
1994. Forty-eight States and the District of Columbia, Puerto
Rico, and the Virgin Islands have adopted the Uniform Controlled
Substances Act, in one version or another. The Uniform Act,
however, does not define "drug paraphernalia."

[8] The judge’s findings include the following: "The
Court finds that Trooper Rogers’ belief that the bong was used in
connection with the smoking of marijuana and therefore probably
contained marijuana residue was merely a hunch . . . . While the trooper’s
training and experience may have influenced his hunch, it does
not take the place of ‘articulable facts’ which could have
reasonably led Trooper Rogers to conclude that the residue was
marijuana" (emphasis supplied). We give no weight to the
judge’s characterization of Rogers’s belief as a
"hunch." The "articulable facts" which the
judge sought were contained in Rogers’s testimony: "As I
could see this bong, it had extensive residue inside the chamber
. . . . It’s clear plastic and it had extensive residue inside
the chamber. Based on my training and experience, it appeared
consistent with a device used to smoke marijuana." The judge
credited Rogers’s testimony, and he accepted Rogers’s background
"training and experience." The judge credited facts
that constituted "articulable facts" as matter of law.
See, e.g., Commonwealth v. Watson, 430 Mass. 725,
733 (2000) ("Probable cause exists when the police have
sufficient information to justify a reasonable person’s belief
that the defendant has committed or is committing a crime . . . .
In determining whether the police think that the automobile
contains contraband, they may rely on their own observations that
take on ‘special significance’ to their ‘trained’ eyes"
[citations omitted]).

[9]See Commonwealth v. Santana,
420 Mass. 205, 211 (1995), quoting from Minnesota v. Dickerson,
508 U.S. 366, 375 (1993) ("Under [the plain view] doctrine,
if police are lawfully in a position from which they view an
object, if its incriminating character is immediately apparent,
and if the officers have a lawful right of access to the object,
they may seize it without a warrant").

[10] Exigent circumstances as a precondition to a
warrantless search are no longer required for an automobile
stopped on a public place. Commonwealth v. Motta,
424 Mass. 117, 123-124 (1997).

[11]The process for the
seizure of drug paraphernalia in forfeiture proceedings is
governed by the provisions of G. L.

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